EXHIBIT 10.3(a)
EXECUTIVE SALARY CONTINUATION AGREEMENT
The AGREEMENT made and entered into as of the 16th day of February,
1989, by and among FIRST ESSEX SAVINGS BANK, a bank organized and existing under
the laws of the Commonwealth of Massachusetts with its principal office in
Lawrence, Massachusetts (the "Bank"), FIRST ESSEX BANCORP, INC., a Delaware
corporation with its principal place of business in Lawrence, Massachusetts,
which is the owner of all of the issued and outstanding capital stock of the
Bank (the "Holding Company") (hereinafter collectively referred to with the Bank
as the "Corporation") and Xxxxxxx X. Xxxxxx of Longmeadow, Massachusetts
(hereinafter called the "Executive") is hereby amended and restated as of
January 1, 1991.
WITNESSETH:
WHEREAS, the Executive and is employed by the Bank and the Holding
Company in a senior executive capacity; and
WHEREAS, because of the Executive's experience, knowledge of affairs of
the Corporation, and reputation and contacts in the industry, the Corporation
deems the Executive's continued employment with the Corporation important for
its future growth; and,
WHEREAS, the Corporation desires to retain the services of the
Executive, and the Executive is willing to continue in the service of the
Corporation if the Corporation will agree to pay him or his beneficiary certain
amounts in accordance with the provisions and conditions hereinafter set forth;
and
WHEREAS, in order to induce the Executive to continue in the employ of
the Corporation and in recognition of his past service, the Corporation entered
into this Agreement as of February 16, 1989 to provide him certain benefits in
accordance with the terms and conditions hereinafter set forth;
WHEREAS, the parties hereto desire to amend and restate this Agreement
as provided herein;
NOW, THEREFORE, in consideration of services performed in the past and
to be performed in the future as well as of the mutual promises and covenants
herein contained, it is agreed as follows:
Article One.
1.01. EMPLOYMENT. The Corporation may employ the Executive in such
capacity or capacities as the Corporation may from time to time determine.
Notwithstanding anything contained herein to the contrary, this Agreement is not
an agreement of employment. Nothing herein shall restrict the right of the
Executive and the Corporation to enter into a separate agreement concerning the
terms and conditions of his employment.
1.02. The benefits provided by this Agreement are not part of any
salary reduction plan or an arrangement. deferring a bonus or a salary increase.
The Executive has no option to take any current payment or bonus in lieu of the
salary continuation benefits herein contained.
1.03. ADMINISTRATION. This Agreement shall be administered by the
Compensation Committee of the Board of Directors of the Holding Company (the
"Compensation Committee"), who shall have the authority to interpret, construe
and implement the provisions of this Agreement.
Article Two.
2.01. NORMAL RETIREMENT BENEFITS. Subject to the conditions and
limitations hereinafter set forth, if the Executive shall continue in the
employment of the corporation until his sixty-second birthday (hereinafter
referred to as "Normal Retirement Date"), he shall be entitled to a Normal
Retirement Benefit hereunder commencing on the first day of the month next
following his actual retirement and continuing during his lifetime, payable
monthly in the annual amount of sixty-five percent (65%) of his Benefit
Computation Base (hereinafter defined), reduced by (a) a portion of the
Executive's Primary Social Security retirement benefit payable (before earnings
reduction) to the Executive or which would be payable determined as a percentage
of said benefit equal to two percent (2%) for each full year of service with the
Corporation and Shawmut Corporation up to twenty-five (25) years, (b) the annual
amount of benefits payable on a single life annuity basis from any qualified
pension plan maintained by the Bank (the "Bank's Pension Plan"), and (c) the
annual amount of benefits payable on a single life basis from the Shawmut
Corporation Supplementary Executive Retirement Plan (the "Shawmut Supplementary
Plan"). For the purposes of determining the reduction relating to benefits
payable under the Bank's Pension Plan, benefits attributable to contributions by
the Executive under such plan shall not be considered.
2.02. BENEFIT COMPUTATION BASE. The Executive's Benefit Computation
Base shall be the amount of compensation, including any bonus, received by the
Executive in the calendar year preceding the Executive's termination of
employment for which compensation from the Corporation was the highest.
2.03. ACCRUED BENEFIT. As used herein the term "Accrued Benefit" shall
mean the amount to which the Executive would be entitled under Section 2.01
commencing at the Normal Retirement Date except that the Benefit Computation
Base shall be determined on the date as of which the Accrued Benefit is to be
determined, multiplied by a fraction, the numerator of which is the actual
number of months of employment with the Corporation and the denominator of which
is the total number of months of employment with the Corporation that the
Executive would have completed had he continued employment with the Corporation
until his Normal Retirement Date. For this purpose, the Executive's period of
employment with the Shawmut Corporation shall be treated as employment with the
Corporation. If the Executive terminates employment prior to his Normal
Retirement Date, in calculating the Executive's Accrued Benefit, (a) the offset
for the Primary Social Security retirement benefit shall be calculated on the
basis of the amount projected to be payable at age 62 assuming continued
earnings by the Executive at the rate in effect at termination of employment
until age 62 and further multiplied by the relevant percentage determined under
Section 2.01; (b) the offset for the Bank's Pension Plan benefit shall be
calculated on the basis of the Executive's accrued benefit in said plan upon
termination of
2
employment projected to be payable at age 62; and (c) the offset for the Shawmut
Supplementary Plan benefit shall be calculated on the basis of the amount
projected to be payable at age 62.
2.04. "ACTUARIAL EQUIVALENT": Actuarial Equivalent shall mean an amount
of benefit differing in time and method of payment from the Normal Retirement
Benefit provided in Section 2.01, but having the same value. Therefore, any
benefit payable other than the Normal Retirement Benefit as stated in Section
2.01 is an Actuarial Equivalent. For all optional forms of payment, Actuarial
Equivalent shall be determined using the interest 'and mortality rates as
published by the Pension Benefit Guaranty Corporation. The rates to be used
shall be those published at the end of the calendar quarter preceding the event
on which the Normal Retirement Benefit must be valued: Normal Retirement Date,
Early Retirement Date, date of termination of employment, date of disability, or
date of death.
2.05. OPTIONAL FORMS OF PAYMENT. In lieu of the lifetime payments
provided in Section 2.01 above, or whenever an Accrued Benefit is payable under
this Agreement, the Executive may, with the approval of the Compensation
Committee, elect an optional form of annuity payment which shall be the
Actuarial Equivalent of such lifetime payments and which (a) may be any optional
form, which is available under the terms of the Bank's Pension Plan, or (b) may
be any other optional form of payment that is approved by the Compensation
Committee.
Article Three.
3.01. DEATH OF EXECUTIVE WHILE ACTIVELY EMPLOYED. In the event of the
death of the Executive while actively employed by the Corporation, the
Executive's designated Beneficiary shall receive a death benefit equal to the
Actuarial Equivalent of the Executive's Accrued Benefit calculated as of the
date of his death. In determining the Actuarial Equivalent value of the
Executive's Accrued Benefit, the Compensation Committee shall utilize the
mortality and interest rates as prescribed in Section 2.04. Said death benefit
shall be payable as a single life annuity and monthly payments under said
annuity shall be payable to the Executive's named beneficiary for the life of
the beneficiary, commencing on the first day of the month next following the
Executive's death. In lieu of said lifetime payments, the beneficiary may, with
the approval of the Compensation Committee, elect an optional form of annuity
payment which shall be the Actuarial Equivalent of said lifetime payments and
which (a) may be any optional form which is available under the terms of any the
Bank's Pension Plan or (b) may be any other optional form that is approved by
the Compensation Committee at the beneficiary's request. If a beneficiary elects
to receive payments under an optional form of payment under this Section 3.01
and dies prior to receiving all benefits available under such optional form of
payment, the remaining benefits shall be made to the person or persons named by
the beneficiary to receive the benefits payable under such optional form of
payment or to the beneficiary's estate if no such person is named. If the
Executive is not survived by a named beneficiary, or if the Compensation
Committee is in doubt as to the effective status of a beneficiary designation,
the death benefit provided by this Section 3.01 shall be payable to the
Executive's estate in one lump sum.
3.02. DESIGNATION OF BENEFICIARY. The Executive shall have the right to
designate a primary beneficiary and a secondary beneficiary, entitled to receive
the benefits payable under Section 3.01 in the event of his death. Such
designation shall be made in writing and delivered to the Compensation
Committee. The Executive may change such designation from time to time and may
revoke such designation. Notwithstanding the foregoing, the Executive's spouse
shall be
3
deemed to be his primary beneficiary, unless he designates a person other than
his spouse as his primary beneficiary and the Executive's spouse consents to
such designation in writing and the spouse's consent is witnessed by a notary
public.
3.03. DEATH OF EXECUTIVE AFTER COMMENCEMENT OF BENEFITS. Upon the death
of the Executive after commencement of any benefits payable under this
Agreement, no benefits will be payable to the Executive's beneficiary or any
other person pursuant to this Agreement unless an optional form of payment
providing for such payment is in effect under Section 2.05.
3.04. DEATH BENEFIT INAPPLICABLE. No death benefit shall be payable
hereunder if the Executive's death occurs within twenty-five months of the date
of this Agreement by reason of his suicide, or if the Executive has made any
untrue statement with respect to any personal or financial information that the
Compensation Committee may require from the Executive in order to carry out the
terms of this Agreement.
Article Four.
4.01. DISABILITY PRIOR TO RETIREMENT. In the event the Compensation
Committee shall determine, on the basis of such medical evidence as it may
reasonably require, that prior to his fifty-fifth birthday, the Executive has
become disabled, mentally or physically, such that, he is prevented from
performing all the material aspects of his duties, the Corporation will pay to
the Executive from the date of such determination, in monthly payments, an
annual amount equal to sixty percent (60%) of his salary at the time he became
disabled until such time as he is no longer so disabled. Said disability
benefits under this Section 4.01 shall be reduced by the amount of payments made
to or on behalf of the Executive as a result of any disability insurance
policies paid for by the Corporation and the amount of salary or money paid to
the Executive during such disability for any subsequent employment or
self-employment of the Executive. The Executive shall be considered to be no
longer disabled at such time as he returns to work in a position with
responsibilities comparable to those inherent in the position in which he was
employed at the date of disability.
4.02. The benefits provided herein for disability shall terminate in
any event on the Executive's sixty- second birthday, Upon the attainment of his
Normal Retirement Date, the Executive shall commence receiving payment of his
Accrued Benefit determined as of the date of the disability. The Accrued Benefit
shall be paid in the form of a single life annuity or any other form provided in
Section 2.05.
4.03. However, in the event the Executive returns to work with the
Corporation after receiving disability -benefits, this Agreement shall continue
in full force and effect as though such disability had not occurred.
Article Five.
5.01. TERMINATION OF EMPLOYMENT. If the Executive's employment with the
Corporation is terminated, whether' voluntary or involuntary, for any reason
other than as provided in Section 2.01, 4.01 or 5.02 or for cause in accordance
with any employment agreement between the Executive and the Corporation, the
Executive shall be entitled to an annual benefit payable monthly commencing at
his Normal Retirement Date and continuing for his lifetime which shall
4
be his Accrued Benefit as of the date of his termination.
5.02. EARLY RETIREMENT. In the event that the Executive voluntarily
terminates his employment with the Corporation for reasons other than death
prior to his Normal Retirement Date but after the attainment of his fifty-fifth
birthday, the Executive shall be entitled to an annual benefit, payable monthly,
commencing on his Normal Retirement Date and continuing for his lifetime which
shall be his Accrued Benefit as of the date of his termination of employment.
5.03. EARLY COMMENCEMENT OF BENEFITS. At the election of the
Compensation Committee, the retirement benefit payable to the Executive under
the provisions of Section 5.02 may commence at any time after the Executive's
termination of employment but prior to the Executive's Normal Retirement Date
("Early Retirement Date"). In the event of commencement of benefits prior to the
Executive's Normal Retirement Date, the offset for such benefits will not take
place until the earliest time at which eligibility occurs. The monthly benefit
payable on the Executive's Early Retirement Date shall be the Actuarial
Equivalent of the Accrued Benefit earned as of the Executive's Early Retirement
Date.
5.04. PAYMENT. Benefits payable under this Article Five may be paid in
the manner provided in Section 2.04.
Article Six.
6.01. NON-COMPETITION. In the event that the Executive is entitled to
receive benefits pursuant to this Agreement, then during the period from the
date of the termination of the Executive's full-time employment with the
Corporation until all of the benefits to which the Executive is entitled under
the Agreement have been paid, the Executive shall not directly or indirectly,
whether as owner, partner, shareholder, consultant, agent, employee,
co-venturer, or otherwise, or through any individual, corporation, association,
partnership, estate, trust, or any other entity or organization, compete in the
Bank's market area (defined as all cities and towns in which the Bank or an
affiliate has an office or a branch on the date of termination and all areas
within a ten mile radius of each such office and branch) with the banking or any
other business conducted by the Corporation during the course of his employment,
nor will he attempt to hire any employee of the Corporation, assist in such
hiring by any other person or entity, encourage any such employee to terminate
his or her relationship with the Corporation, or solicit or encourage any
customer of the Corporation to terminate his relationship with the Corporation
or to conduct with any other person or entity any business or activity which
such customer conducts or could conduct with the Corporation.
Article Seven.
7.01. ALIENABILITY. Neither the Executive, his widow, nor any other
beneficiary under this Agreement shall have any power or right to transfer,
assign, anticipate, hypothecate, mortgage, commute, modify, or otherwise
encumber in advance any of the benefits payable hereunder, nor shall any of said
benefits be subject to seizure for the payment of any debts, judgments, alimony
or separate maintenance, owed by the Executive or his beneficiary or any of
them, or be transferable by operation of law in the event of bankruptcy, or
otherwise.
5
Article Eight.
8.01. PARTICIPATION IN OTHER PLANS. Nothing contained in this Agreement
shall be construed to alter, abridge, or in any manner affect the rights and
privileges of the Executive to participate in and be covered by any pension,
profit-sharing, group insurance, bonus or similar employee plans which the
Corporation has or may hereafter have.
Article Nine.
9.01. FUNDING. The rights of the Executive and any other person or
persons entitled to benefits hereunder shall be limited to those of a general
creditor of the Corporation. The Corporation reserves the absolute right at its
sole and exclusive discretion to insure or otherwise provide for the obligations
of the corporation undertaken by this Agreement or to refrain from same, and to
determine the extent, nature and mood thereof. Should the Corporation elect to
insure this Agreement, in whole or in part, through the medium of insurance or
annuities, or both, the Corporation shall be the owner and beneficiary of the
policy. At no time shall the Executive be deemed to have any right, title or
interest in or to any specified asset or assets of the Corporation, including
but not by way of restriction, any insurance or annuity contract or contracts or
the proceeds therefrom.
9.02. If the Corporation purchases a life insurance or annuity policy
on the life of the Executive, he agrees to sign any papers that may be required
for that purpose and to undergo any medical examination or tests which may be
necessary, and generally cooperate with the Corporation in securing such policy.
Any such policy, contract or asset shall not in any way be considered to be
security for the performance of the obligations of this Agreement.
Article Ten.
10.01. REORGANIZATION. If the Corporation merges or consolidates into
or with another corporation, or reorganizes, or sells substantially all of its
assets to another corporation, firm, or person, such succeeding or continuing
corporation, firm or person shall assume and discharge the obligations of the
Corporation under this Agreement. Upon the occurrence of such event, the term
"Corporation" as used in this Agreement shall be deemed to refer to such
successor or survivor Corporation.
Article Eleven.
11.01. BENEFITS AND BURDENS. This Agreement shall be binding upon and
inure to the benefit of the Executive and his personal representatives, and the
Corporation, and any successor organization which shall succeed to all or
substantially all of its assets and business without regard to the form of such
succession.
Article Twelve.
12.01. COMMUNICATIONS. Any notice or communication required of any
party with respect to this Agreement shall be made in writing and may either be
delivered personally or sent by first class mail, as the case may be:
To the Corporation:
6
First Essex Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Compensation Committee
To the Executive:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to which
any notice may be addressed.
Article Thirteen.
13.01. CLAIMS PROCEDURE. In the event that benefits under this
Agreement are not paid to the Executive (or his legal representative or
beneficiary in the case of the Executive's death or legal incapacity), and the
Executive or such person feels entitled to receive said benefits, a claim shall
be made in writing therefor to the Compensation Committee. Such claim shall be
reviewed by the Compensation Committee. If the claim is approved or denied, in
full or in part, the Compensation Committee shall provide a written notice of
approval or denial within sixty (60) days of receipt of the claim setting forth
the specific reason for denial, citing specific reference to the provisions of
this Agreement upon which the denial is based, and any additional material or
information necessary to properly inform the Executive, his legal representative
or beneficiary. Such written notice from the Compensation Committee shall
indicate the steps to be taken if a review of the denial is desired. A claim
shall be deemed denied if the Compensation Committee does not take action within
the aforesaid sixty (60) day period. If a claim is denied and a review is
desired, the Executive (or his aforesaid legal representative or beneficiary),
shall notify the Compensation Committee in writing within twenty (20) days of
the receipt of said denial or within twenty (20) days after the expiration of
the 60 days of filing the claim, if there is no action taken by the Compensation
Committee requesting such further review. In requesting such review, the
Executive (or his legal representative or beneficiary), may refer to this
Agreement or any document or documents relating to it and submit any written
issues and comments he or she may feel appropriate. The Compensation Committee
shall again review the claim and provide a written decision within sixty (60)
days of the receipt of the request for subsequent review stating the specific
reasons for the decision and which shall include reference to specific
provisions of this Agreement on which the decision is based. (The claim shall be
deemed denied again if the Compensation Committee does not take such action
within the aforesaid sixty (60) day period).
13.02. Any decision of the Compensation Committee shall not be binding
on the Executive, his legal representative, or beneficiary without their written
consent thereto. If the Executive, his legal representative or beneficiary shall
not so consent in writing thereto, then they shall be at liberty thereafter to
take said further action as the Executive, his legal representative or any
beneficiary shall deem necessary to preserve their claim.
7
Article Fourteen.
14.01. AMENDMENTS TO THIS AGREEMENT. This instrument may be altered or
amended only by a written agreement signed by the parties hereto.
14.02. JURISDICTION. The terms and conditions of this Agreement are
governed by and are to be construed under the laws of the Commonwealth of
Massachusetts.
14.03. GENDER. Any reference to this Agreement to the masculine shall
be deemed to include the feminine.
IN WITNESS WHEREOF, First Essex Bancorp, Inc. and First Essex Savings
Bank have caused this Agreement to be duly executed by their duly authorized
officers and their Corporate Seals affixed, duly attested, and the Executive has
hereunto set his hand and seal this 24th day of January 1992.
FIRST ESSEX SAVINGS BANK
By:
--------------------------------------
Title
Attest:
----------------------------------
FIRST ESSEX BANCORP, INC.
By:
--------------------------------------
Title
Attest:
----------------------------------
-----------------------------------------
XXXXXXX X. XXXXXX
8
